Monday, June 4, 2012

Smooth Move

By Nicole Killoran

State v. Kolibas, 2012 VT 37.

Today’s case illustrates the difference of perception, the need for proof by the State, and the obligation of the court to hold the prosecution to that standard.

Defendant’s daughter had her teenage friend over one night for a sleepover.  Defendant decided to whip up a batch of smoothies as a delicious after-dinner treat.  However, Defendant was apparently concerned for his wife’s stress level, and decided to quietly pepper his wife’s drink with an Ambien and half a Valium.  Unbeknownst to Defendant, his wife, disinterested in her fruity drink with a hidden side of stress-relief, dumped her share into her husband’s glass.  How the drink got from Defendant’s glass to its eventual recipient is unclear.

Defendant took smoothies to Daughter and her friend, watching a movie in Daughter’s room.  Daughter’s friend quickly realized when she drank her smoothie that something was funny.  The drink didn’t taste right, and she was quickly swept into a drugged stupor.  What happened next is uncertain.  As the teenager floated in and out of consciousness, she claims that she saw Defendant in front of her in the room, touching her chest, pulling down her pants, touching her private bits, pulling her pants back on, then kissing her on the cheek with a promise that he wouldn’t tell anyone.

Upon waking, the friend called her mother, and they immediately reported to the police.  A subsequent sexual assault evaluation and urine test revealed the presence of benzodiazepine (Valium) and traces of Ambien.  Defendant’s wife and Daughter tested negative for the drugs.  Based on this information, the State charged Defendant with lewd and lascivious conduct, and two counts of aggravated assault for intentionally drugging Daughter and her friend.

While in prison awaiting trial, Defendant decided to explain himself to his wife.  He wrote a letter to her claiming that he had somehow mixed up the smoothies.  He claims that upon investigating “noises upstairs” he found Daughter’s friend with her pants down, masturbating.  He claims that he had then put her pants back on, told her he wouldn’t tell anyone, and that the teenager tried to kiss him before he left the room.

Despite the ordinary privilege attaching to such spousal communications, this letter was read into evidence under a statutory exception for a person charged with a crime against his own child.  To counter Defendant’s claim in the letter that he had mistakenly drugged Daughter’s friend, the State presented evidence that Defendant had made this “mistake” before—testimony from six of Daughter’s friends stating they had slept over, drank Defendant’s smoothies, and felt dizzy or fatigued.

When the case went to trial, the trial court got hung up on the issue today’s case ultimately turns on: intent.  The crime Defendant was charged with, aggravated assault by use of a substance intended to cause “stupor, unconsciousness, or other physical or mental impairment,” is known as a “specific intent” crime.  This means that in order for Defendant to be convicted of his crime, the jury had to find that Defendant specifically intended to drug Daughter and her friend or that he was practically certain that they would be the recipients of his smoothie cocktail.

Before the case was put to the jury, the trial court asked the parties to brief an issue that was not brought up in the State’s initial charges: transferred intent.  Transferred intent is a doctrine where a defendant’s intent to commit a crime against a particular person may be transferred to the actual victim.  (Hawkeye intends to shoot Magua but hits Uncas instead.)  

Vermont has not adopted this doctrine, but several other states have.  Because Defendant’s defense to this whole debacle was that he intended to drug his wife, not his daughter or her friend, the trial court considered applying transferred intent to allow the jury to decide whether to convict Defendant despite his claim of mistake. 

In their briefs, both parties argued that the doctrine did not apply to Defendant’s crime.  The State had charged Defendant with intent to assault the teenagers, and it believed the evidence proved this.  Defendant argued that the State had to prove that he specifically intended to drug the teenagers to meet the State’s burden of proof for conviction and that anything less would not carry this burden. 

Despite these arguments, the trial court instructed the jury that Defendant could not claim mistake as a defense, and that if the jury found he had the intent to drug “another person” (such as his wife), the State did not have to prove that he intended to drug Daughter or her friend.  The jury returned a guilty verdict on these instructions.  Defendant appealed.

On appeal, the issue for the SCOV is whether the trial court’s jury instructions impermissibly eased the State’s burden of proof on the intent issue, denied Defendant his “mistake” defense, and violated his constitutional rights to a fair trial. 

The State—hard pressed to argue directly against this claim given its position below—chose to side-step the issue and to claim that Defendant had failed to sufficiently preserve his objection to the jury instructions during trial.  Defendant, according to the State, could not raise this issue on appeal because he failed to specify at trial that he disagreed with the court’s instructions.

The SCOV’s analysis proceeds in a succinct one-two.  First, the SCOV addresses the claim that Defendant did not preserve his objection at trial, and concludes that this is simply not true.  During the conference discussing the charges brought against Defendant, his attorney objected repeatedly to the trial court’s proposed transferred intent instructions.  After the court delivered the charge to the jury, Defendant again objected, specifically stating that the instructions relieved the State of its constitutional requirement to prove all elements of the crime.  On these facts, the SCOV finds that Defendant made a detailed objection, clearly preserving the issue for review on appeal.

Second, the SCOV considers whether the trial court relieved the State’s burden of proving intent and violated Defendant’s constitutional right to a fair trial.  The SCOV’s analysis on this point depends on the language contained in the State’s original charges against Defendant.  These stated that Defendant had intentionally drugged “another person, to wit,” Daughter and her friend.  This “to wit” language, the SCOV reasons, clearly indicates that the State was putting Defendant on notice that he was charged with drugging Daughter and her friend, and not his wife.  Despite the State’s theory, and Defendant’s defense of “mistake” with regards to the teenagers, the trial court referred to conduct outside the charge (transferred intent) in instructing the jury, thereby prejudicing Defendant’s ability to defend against the charges. 

This is constitutional error, the SCOV concludes, and it remands the case to the trial court for the State to prove specific intent to drug the teenagers.

So Defendant gets another shot at convincing a jury that the alleged incidents of that night were more a Three’s Company episode-gone-wrong than Todd Solondz’s Happiness.  How successful he will be will no doubt depend on both the State’s approach this time, and how the trial court chooses to draft the instructions.  We suspect the concoction will be slightly different second-time around.


  1. I think the flippant introduction to a matter involving an unappealed conviction for lewd and lascivious behavior by a father toward his minor daughter's friend is wholly inappropriate.

  2. I concur with the above comment. I have made a similar statement regarding other sexual assault cases that have been summarized on this blog. I find the summaries to be callous and inappropriate.

  3. I am sorry that this entry offended both of you. We really strive to keep the blog light, impartial, and informative, but we do not intend to offend. We take feedback seriously and will keep it in mind for future summaries. Thanks for commenting.

  4. Sexual assault against anyone, but especially a child, is not something that I think can be kept "light" without being extremely disrespectful and hurtful to the victim, and offensive to others. I think that it is inappropriate to be so flip when addressing serious topics, especially rape and murder. I am glad that you will be keeping this in mind for future blogs.

  5. I believe the State has now dismissed the 2 aggravated assault charges. Defendant was convicted of Lewd and Lascivious conduct not sexual assault.